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Today was a stunning day in the world of drones and model aircraft. The day began with a National Transportation Safety Board ruling in the Pirker decision affirming the ability of the FAA to pursue enforcement actions against individuals for the operation of drones and other model aircraft, irrespective of size. That decision was followed by comments made by Jim Williams, the head of the FAA's UAS Integration Office in which Williams claimed that the FAA's regulatory authority extends to any place where a drone may operate, including centimeters above a blade of grass. These are huge developments that need to be unpacked.

First, with regard to the Pirker decision. In the case, the NTSB upheld the FAA's interpretation of their rules: "An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless." What that means is that the toy helicopter you plan to buy for your kid this Christmas --- it's a "device" that is "used for flight" thus it is an aircraft and the operation of that aircraft is subject to FAA regulations.

An NTSB ruling means that a toy nano copter like this one is an aircraft subject to FAA regulations.

Now you may think that the FAA won't come after someone for operating this aircraft without the blessing of the government, after all hobbyist flights are allowed. Unless of course you are one of the millions of Americans who live within five miles of an airport, in which case flying this aircraft would be unlawful. Granted, even if you're near an airport, you will likely get away with flying this tiny quadcopter in your back yard. But getting away with a violation of the law, is not the same as something being legal. And it begs the question, what sized remote controlled helicopter or airplane use in your backyard (within five miles of an airport) would subject you to enforcement (with fines ranging up to $10,000)? Would a one pound aircraft draw the attention of government agents? A three pound aircraft? Five pounds? All are aircraft, and all are the subject of government regulations which (as I discuss below, apply at any altitude above your property). The only open question for the average citizen is which backyard flights in restricted "airspace" will bring government agents to your door?

Troubling as that hypothetical is, perhaps even more troubling is the FAA's acknowledgment that they believe their regulatory authority over "aircraft" extends down to millimeters above your backyard. Today I posed a hypothetical to FAA representative Jim Williams, his answer reveals what the FAA thinks about the scope of their authority, even when that authority runs into your property rights (for the seminal primer on drones and property rights, see Airspace In An Age Of Drones, by Troy Rule).

My hypo:

If I have a sod field, I can go out for fun and do barrel rolls with my model aircraft. However, if I want to do flat and level flight at twelve inches above the sod field to take photos so I can use fewer pesticides, in the FAA’s mind the flat and level flight is not permitted…but the barrel rolls for fun are permitted. First, what is the logic of that? And how does that speed integration of UAS into the national airspace? Second, how is it that the FAA believes it has regulatory authority down to centimeters above a blade of grass? At some point in time, you’re not in national airspace anymore you’re in my sod field or my backyard. I could build a six foot fence or a twelve foot flagpole, but I can’t fly a UAS at twelve centimeters? I would love to know the logic of that from your office’s perspective.

There's no way around it, the FAA considers the air one millimeter above your lawn or your patio, to be the national airspace subject to federal government regulation. Mr. Williams concluded "That’s just the situation. I’m not saying it’s ideal, but that’s what the laws say and that’s what the rules say." That may be what the FAA thinks the laws say, but if that's the case, Congress needs to change those laws.